How a Divorce Affects Your Will

There’s a lot to think about when you are getting divorced. One of your priorities when separating will be the living arrangements for your children followed closely by your financial settlement and whether you will stay in the family home or get a share of your spouse’s pension or business.

Your Will may be low on your list of priorities when you are in the middle of no-fault divorce and financial settlement proceedings. Our Will solicitors understand this but can quickly and efficiently sort out a new Will for you when you are ready to do so.

In this article, our Will solicitors explain how a divorce affects your Will and why it’s important to prioritise a new Will.

For expert Will advice call our team or complete our online enquiry form.

Does divorce cancel an existing Will?

Divorce does not cancel a Will made during your marriage. However, divorce has an impact on your Will. If you are unaware of the automatic effect of a divorce on your Will you need to speak to a Will lawyer for advice and a new Will.

Divorce does not:

• Revoke a Will made during your marriage
• Reinstate a Will made before your marriage
• Leave you without a valid Will – but depending on the terms of your Will all your estate could pass under intestacy rules despite your having a valid pre-divorce Will

Divorce does:

• Leave you with a valid Will but your ex-husband or former wife is treated in law as if they died when the marriage ended by divorce
• Leave you with no or one less executor if you appointed your former spouse as an executor of your Will
• Leave all or part of your estate to be dealt with under the intestacy rules if you left all or a share of your estate to your husband, wife or civil partner and you did not say in your Will who would inherit if they died before you

Many Wills made during a marriage or civil partnership appoint a spouse as the executor and leave the entire estate or most of it to the spouse or civil partner. This type of Will is worthless after divorce and needs to be updated quickly.

Why do you need a new Will when you divorce?

Separation or divorce should always trigger a review of your Will. You should not assume that if your former spouse won’t inherit under your Will the intestacy rules will allow your preferred family member to inherit your ex-spouse’s inheritance.

If you want your children to inherit your estate instead of your former spouse you may need to appoint trustees if your children will potentially be aged under 18 when they inherit. Making a Will allows you to decide the age when your children will receive their inheritance. You may want your children to receive their legacy at age 25 with a clause in the Will to give your trustees the power to advance income or capital to your children for agreed purposes, such as a house deposit or to help fund university fees.

If you have a blended family with a new partner and children from previous relationships and step-children it is essential to consider signing a new Will. Under intestacy rules, unmarried partners and stepchildren don’t inherit a share of your estate.

If you don’t sign a new Will there’s a greater risk of the Will made during your marriage being challenged. For example, if your new partner won’t inherit anything because the money left to your ex-spouse in your Will now passes to your wealthy parents under the intestacy rules. A Will prepared by a specialist Will solicitor can reduce the risk of your Will or the intestacy provisions being subject to an estate challenge and court claim alleging that reasonable financial provision was not made for a claimant.

Can an ex-spouse claim a share of the estate even though they no longer inherit under the old Will made during the marriage?

Depending on the financial settlement reached with your former spouse an ex-spouse can potentially claim a share of your estate by saying the Will and the intestacy rules don’t make reasonable financial provision for them.

Ex-spouses can potentially make a claim on the estate if you did not obtain a clean break financial court order. In many divorce settlements, a clean break financial court order is inappropriate. For example, when there are young children or after a long marriage and there isn’t enough capital or equity in the family home to achieve a clean break. The court order may therefore include spousal maintenance.

To reduce the risk of litigation against your estate your Will solicitor can advise you on how best to prepare a new Will. For example, you could include a trust in your Will and write a letter of wishes to your trustees so they have your guidance but the trustees can exercise their discretion to resolve an estate claim as cheaply as possible. The ability to settle a claim leaves more of your estate available for your intended beneficiaries.

At Evolve Family Law our Will solicitors will ensure you get estate planning advice that is tailored to your personal and financial circumstances and are happy to advise if you think your existing Will needs reviewing because of a separation, divorce, new relationship, remarriage or a change in your beneficiary’s circumstances.

For expert Will advice call our team or complete our online enquiry form.